Navigating the criminal justice system can be tricky. Most laypeople find it confusing and, just when they think they’ve got the process somewhat figured out, something comes along that throws them for a loop. Like a direct indictment.
A direct indictment is the process by which prosecutors take a felony case directly the grand jury, as opposed to a case being investigated and filed by law enforcement. The grand jury decides whether or not charges should be filed against a person.
Direct indictments in Texas (or direct filings to the grand jury that result in no-bills) often fly under the radar since grand jury proceedings are secret. When an investigation is taken directly to a grand jury, the subject of the investigation has not already been arrested or charged with a crime. In fact, it’s possible they may not even know they are in the government’s crosshairs.
For example, in 2017 news surfaced that a former swim coach with the Carroll school district in North Texas had been charged with abandoning or endangering a child by criminal negligence in the drowning of a 13-year-old swimmer at practice after prosecutors took the case directly to the grand jury. The news came as a surprise to the public, as well as members of the media and legal community, due to the fact that the coach had never been arrested and the death, which had been ruled accidental by the Tarrant County Medical Examiner, was a year old.
There are many reasons prosecutors present cases directly to the grand jury, especially if they are controversial or highly publicized. There could be political motivations for a case; law enforcement may disagree with the prosecutor about the validity of the charges; the investigation may involve a member of law enforcement, a government official or a celebrity; or in certain cyber crimes the district attorney’s office may have more taxpayer resources to spend to investigate the offense. These proceedings are not uncommon in Tarrant County.
Here’s an overview of direct indictments in Texas.
Most felony cases begin with the police. When police believe a crime has occurred, they begin an investigation. Once the investigation is complete, the officer will inform a magistrate through a sworn affidavit the reasons he believes an offense occurred. The magistrate will review the affidavit and if he or she determines that there is probable cause, they will issue a warrant for the suspect’s arrest.
Once the suspect is arrested, the case will be forwarded to the District Attorney’s Office who will make a determination to accept the case for prosecution and formally charge the individual. If the DA’s office accepts the case and the defendant is in custody, they have 90 days to present the case to a grand jury. If the defendant is free on bond, the prosecutor’s office has 180 days to present the case to a grand jury. These deadlines to do not bar prosecution, but if they are passed the individual may be released from custody or have a greatly reduced bond or bond conditions.
A direct indictment essentially skips all of the above steps and a case is presented directly to the grand jury. More on that in a minute.
The grand jury is made up of 12 every day citizens who meet and hear cases to determine if there is probable cause to believe a crime occurred. Prosecutors present the evidence for them to consider and very often recommend how they should vote. If at least nine grand jurors vote that a person should be charged with a crime, an indictment is signed by the foreman of a grand jury and turned over to a district court. If the evidence is determined to be insufficient, the grand jury may vote a “no bill” or decline to indict. Basically, an indictment moves a case into court for pre-trial negotiations or a trial. It’s important to point out that grand jury proceedings are secret and what occurs in the grand jury room and deliberations are not a matter of public record, although an indictment is public document.
When a case is presented directly to the grand jury, the first three steps of the investigative process are essentially skipped. There is no police report or affidavit outlining an investigation, no arrest warrant, no arrest, no jail book-in, and no formal charges by the District Attorney’s Office – at least not on the front end. The investigation is presented to a grand jury and they alone, without police or judicial oversight, make a determination about charges. As mentioned, they can choose to indict or to no-bill. If they indict, the case moves forward for prosecution.
When a direct indictment is returned, a judge will set a bail amount for the charge and issue an arrest warrant for individual indicted by the grand jury. At that point, the individual will undergo the same process as any other defendant. They will be arrested, taken to jail, booked in and, if possible, will have the option to bond out of jail.
Many times cases are taken directly to the grand jury if they are controversial, highly-publicized, politically charged or involve a public official or celebrity. By taking the case directly to a grand jury, the prosecutor’s office avoids having to make a charging decision outright (and the fallout that could come with it.) The prosecutors instead put the information and evidence in front of a grand jury and allow them to make the decision about the charges. This is common in officer-involved shootings, for example.
Prosecutors also take cases directly to the grand jury if the investigation stems from information obtained by their office. For example, many district attorney’s offices have units devoted to economic or white collar crimes. Because many police departments do not have designated law enforcement officials to handle these types of complex investigations, they refer them to a specialized unit at the district attorney’s office. Once the unit completes the investigation, they will take it directly to the grand jury.
Likewise, when information develops on pending cases in the prosecutor’s office that an additional crime may have been committed, investigators there may work up the case and present it directly to the grand jury. It takes police departments out of the equation.
Another distinguishing factor between a direct indictment and “regular indictment” is the point at which the document becomes public. Normally, when an indictment is returned, it becomes public almost immediately – or at least until the clerks can enter them into the system. With a direct indictment, the charging document does not become a public record until the accused is in custody or under bond, which could take some time.
Texas Code of Criminal Procedure Article 20.22 says if a defendant is not in custody or under bond at the time of the indictment, “the indictment may not be made public and the entry in the record of the court relating to the indictment must be delayed until a warrant has been issued and the defendant is in custody or under bond.”
This is sometimes a source of frustration for the news media who may hear that an individual has been indicted for a crime, but are unable to get their hands on any paperwork verifying the information for some time.
As with any criminal case, it’s imperative that you obtain legal counsel as soon as possible. In fact, if you believe you are the subject of a criminal investigation, it’s in your best interest to reach out to an attorney sooner rather than later. We can help. The attorneys at Varghese Summersett bring together more than 100 years of criminal law experience, have tried more than 550 jury trials and include three Board Certified Criminal Law Specialists. Learn more about our team.